* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 11, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-61023

Summary Calendar

 

JULIUS STURGES, ESTATE, deceased, by and through Gladys Ann

Anderson, individually, and as mother and next friend, and for

and on behalf of the wrongful death beneficiaries,

Plaintiff-Appellant,

versus

MIKE MOORE; ET AL.,

Defendants,

L. GLYNN PEPPER, in his official capacity as the Chancery Clerk

for Hinds County Mississippi; DOUGLAS ANDERSON, in his official

capacity and as president of Hinds County Board of Supervisors;

MALCOLM E. MCMILLIN, Sheriff, in his official capacity as Sheriff

of Hinds County, Mississippi, ALICE LUCKETT; MATTIE MARTIN,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:01-CV-10-BN

--------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

The estate of Julius Sturges (the estate) appeals the

district court’s denial of its FED. R. CIV. P. 59(e) motion to

alter or amend the judgment to consider the sworn affidavit of
No. 02-61023

-2-

its expert in ruling on the defendants’ summary-judgment motions. 

The estate argues that its filing of the affidavit comported with

FED. R. CIV. P. 56(c) and that the defendants failed to object to

its filing. The estate also argues that the affidavit’s

production was delayed by the defendants’ lateness in producing

discovery and that the affidavit was filed three weeks prior to

the district court’s ruling. 

The district court held that the estate could show the need

for Rule 59(e) reconsideration only by showing an intervening

change in controlling law, new evidence not previously available,

or manifest injustice. This standard is too stringent. See 

Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174

(5th Cir. 1990), abrogated on other grounds, Little v. Liquid Air

Corp., 37 F.3d 1069 (5th Cir. 1994). In deciding a Rule 59(e)

motion the district court should consider the following noninclusive factors: “(1) the reasons for the plaintiffs’ default,

(2) the importance of the evidence to the plaintiffs’ case, 

(3) whether the evidence was available to plaintiffs before they

responded to the summary judgment motion, and (4) the likelihood

that the defendants will suffer unfair prejudice if the case is

reopened.” Ford v. Elsbury, 32 F.3d 931, 937-38 (5th Cir.

1994)(citing Lavespere, 910 F.2d at 174). 

None of these balancing factors weigh in favor of denying

the estate’s Rule 59(e) motion. Although the responsibility for

the default is shared by the estate and the defendants and the
No. 02-61023

-3-

information may have been available earlier had the estate filed

a motion to compel, the omitted affidavit was critical to the

estate’s case, and there is little likelihood of unfair prejudice

to the defendants should the case be reinstated given that the

affidavit was submitted to the district court approximately three

weeks before the grant of summary judgment during which time the

defendants did not file a motion to strike that affidavit. The

district court abused its discretion in denying the Rule 59(e)

motion. See Lavespere, 910 F.2d at 175. The denial of the Rule

59(e) motion is VACATED and the matter REMANDED for further

proceedings.